DocketNumber: 4892
Citation Numbers: 406 P.2d 287, 81 Nev. 456
Judges: Badt, Thompson, Zenoff
Filed Date: 9/30/1965
Status: Precedential
Modified Date: 8/7/2023
By the Court,
This is an action by the insureds on a policy of insurance covering a Guadagnini violin of the agreed value of $10,000. Following loss of the violin, the insurer
The question asked on the application for insurance with which we are concerned was, “Has any company ever refused or canceled insurance?”
1. It is, of course, true that one has an obligation not to speak falsely when inducing another to make a bargain. This worthy rule is recognized both by statute and case law in Nevada. NRS 686.190; Poe v. La Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960); Smith v. North American Ins. Co., 46 Nev. 30, 205 P. 801 (1922). Thus, absent factors favoring the application of the doctrines of waiver or estoppel, an insurer is not bound by an insurance contract that he was induced to make by the fraudulent misrepresentations of the insured. The application for insurance in the
The application for insurance was not made a part of the insurance contract by incorporation by reference, i.e., a statement in the policy that the application is made a part of the policy, Phoenix Mutual Life Insurance Co. v. Raddin, 120 U.S. 183, 7 S.Ct. 500, 30 L.Ed. 644 (1887), or by endorsement on the policy itself. Smith v. North American Insurance Co., supra; cf. Universal Underwriters v. Snyder, 81 Nev. 315, 402 P.2d 483 (1965). Thus the answers in the application did not become warranties or conditions, but are representations collateral to the contract of insurance. The distinction between a warranty and a representation is sometimes of controlling significance in insurance litigation. The following authorities articulate that distinction in depth: Patterson, “Warranties in Insurance Law,” 34 Colum.L.Rev. 595 (1934) ; Kimball, “Warranties, Representations and Concealment,” 4 Utah L.Rev. 456 (1955) ; Patterson, “Essentials of Insurance Law” § 76, p. 384 (2d ed.); Phoenix Mutual Life Insurance Co. v. Raddin, supra; Moulor v. American Life Insurance Co., 111 U.S. 335, 4 S.Ct. 466, 28 L.Ed. 447 (1884). In general terms a warranty in
2. The insureds do not challenge the findings below, that they fraudulently misrepresented a fact material to the risk when applying for coverage
The insurer’s claims department, Los Angeles office, did have a record of the prior loss and subsequent cancellation. However, no agent of that department of the insurance company was in any way connected with the solicitation or issuance of the present policy, and
This argument is not without persuasion. Yet it finds only meager support in case law. See Rhode v. Metropolitan Life Ins. Co., 129 Mich. 112, 88 N.W. 400 (1901); Great Northern Life Ins. Co. v. Vince, 118 F.2d 282 (6th Cir. 1941), which stand for the principle that earlier records do not necessarily put the company on notice unless there is some circumstance to direct its attention to them. See also Schrader v. Prudential Ins. Co., 280 F.2d 855 (5th Cir. 1960), dealing with group insurance. The overwhelming body of authority favors the insured and holds that the insurer, as a matter of law, is chargeable with knowledge of the misrepresentation, because of full information about it present in its own files. See: McKinnon v. Massachusetts Bonding & Ins. Co., 213 Wis. 145, 250 N.W. 503 (1933), (theft policy); Kennedy v. Agricultural Ins. Co. of Sioux Falls, 21 S.D. 145, 110 N.W. 116 (1906), (fire policy); Kelly v. Metropolitan Life Ins. Co., 44 N.Y.S. 179 (1897), (life policy) ; Atlas v. Metropolitan Life Ins. Co., 181 N.Y.S. 363 (1920), (life policy) ; O’Rourke v. John Hancock Mutual Life Ins. Co., 23 R.I. 457, 50 A. 834 (1902), (life policy); Clay v. Liberty Industrial Life Ins. Co., (La.App.), 157 So. 838 (1934), (life policy); Hicks v. Home Security Life Ins. Co., 226 N.C. 614, 39 S.E.2d 914 (1946), (life
We agree that in these peculiar circumstances the insurer, as a matter of law, is chargeable with actual knowledge of the misrepresentation and may not avoid liability. Our conclusion rests upon waiver. In the law of insurance waiver is defined as the giving up of a known privilege or power. It may be express or implied from circumstances and always involves consent, express or implied, but does not necessarily rise to the level of contract. Vance on Insurance, 470 (3d ed. 1951). Specifically we hold that the insurer waived its power to rescind the insurance contract by issuing the policy
The judgment below is reversed, with direction to enter judgment in favor of the appellants and against the respondent for $10,000 with interest from July 24, 1961, until paid, and taxable costs below and here.
The question is poorly phrased. However, it was not contended below, or here, that its meaning is obscure and the applicants misled.
The distinction between a warranty and a representation disposes of an alternative argument offered by tbe insurer on this appeal. The insurer seeks to sustain the judgment in its favor by the “non-waiver” provision of the insurance contract. That provision denies power to an agent or representative of the insurer to waive any condition or provision of the policy. As the representation here involved is not a term of the policy, the non-waiver clause is inapplicable.
For the distinctions between waiver and estoppel read: Morris, “Waiver and Estoppel in Insurance Policy Litigation,” 105 U. of Penn.L.Rev. 925 (1957); Vance on Insurance, 470-546 (3d ed. 1951).
NRS 99.040 provides that interest upon an express contract shall be allowed at the rate of 7 percent per annum upon all money from the time it becomes due. The policy provides that “all adjusted claims shall be paid or made good to the assured within 60 days after presentation and acceptance of satisfactory proof of interest and loss at the office of this company.” The amount of loss is not in dispute. It is liquidated. The insurer acted within 60' days after proof of loss by cancelling the policy. The letter of cancellation is dated July 24, 1961. Interest runs from that date. Dollar Investment Corp. v. Modern Market, Inc., 77 Nev. 393, 365 P.2d 311 (1961). Compare Agricultural Ins. Co. v. Biltz, 57 Nev. 370, 64 P.2d 1042 (1937), and Arley v. Liberty Mutual, 80 Nev. 5, 388 P.2d 576 (1964), where the amount of the loss was disputed, i.e., unliquidated, and interest ran from date of judgment.
The premium paid was for a year, thus no continuity of conduct that would alert the insurer.